186 Ind. 316 | Ind. | 1917
This cause was before this court before in the case of Wise, Admr., v. Cleveland, etc., R. Co. (1915), 183 Ind. 484, 108 N. E. 369.
The record discloses that suit was brought by Wise, administrator, to recover damages for the killing of his. decedent, Thomas F. Wise. Trial was had by jury resulting in a verdict for Wise, administrator, in the sum of $2,000. The appellant in this cause filed its motion for judgment in its favor upon the jury’s answers to the interrogatories, notwithstanding the general verdict. Before that motion was ruled upon by the court it became necessary for appellant company to file its motion for a new trial or waive the same for failure to file within the time allowed by statute. §587 Burns 1914, Acts 1913 p. 848. After the filing of the motion for new trial the court sustained appellant’s motion for judgment upon the interrogatories notwithstanding the general verdict. No ruling was made on the motion for new trial, filed and presented in open court, nor as shown by the record, were any steps taken by the company to have the court make a ruling upon the motion for a new trial after its ruling on the motion for judgment upon the answers to the interrogatories. The administrator appealed and the cause was determined upon the question presented by the trial court’s ruling on the motion for judgment upon the answers to the interrogatories and reversed with instructions to overrule the motion. When the mandate was acted upon by the trial court, it followed the instructions of this court and in addition thereto overruled the appellant’s motion
The only assignment of errors is that the court overruled the motion for a new trial. The causes assigned for a new trial and relied upon here are: (1) The verdict of the jury is not sustained by sufficient evidence; (2) the verdict of the jury is contrary to law; (3) the damages assessed by the jury are excessive; (4) the court erred in giving instructions Nos. 8, 11 and 12; and (5) the court erred in refusing to give instructions Nos. 6, 7, 8, 9 and 10 and each of them.
Considering only the evidence most favorable to appellee it is sufficient to sustain the verdict.
Instructions similar to this one have been upheld by this court and the Appellate Court. Pittsburgh, etc., R. Co. v. Reed (1905), 36 Ind. App. 67, and cases cited on page 72, 75 N. E. 50. In this last case cited we are of the opinion that the court has announced too broad a doctrine, in the use of the following language: “The burden of establishing such defense is upon the defendant, and so continues throughout the case. It must be presumed in such case, until the defense of contributory negligence has been sufficiently proved, that the person killed or injured was free from contributory negligence in all respects.” (Our italics.) This presumption could only prevail in favor of the plaintiff until some evidence has been introduced when the issue thus • presented goes to the jury free from presumptions in favor of either party. This presumption does not prevail in favor of plaintiff throughout the trial, except in the absence of evidence on the subject
The finding of a verdict of $2,000 for the negligent killing of decedent does not seem to us to be an excessive verdict.
There being no reversible error presented, the judgment is affirmed.
Note. — Reported in 116 N. E. 299. See under (1) 38 Cyc 1785.